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2007 DIGILAW 243 (MP)

Phoola Bai v. Additional Collector, Tikamgarh

2007-02-28

AKHIL KUMAR SRIVASTAVA

body2007
ORDER 1. By this petition under Article 226 and 227 of the Constitution of India, the petitioner is seeking the following reliefs: (i) To quash the impugned order dated 16.10.2006 passed by Additional Collector (Annexure P-8) and petitioner be permitted to work as officiating Sarpanch of Gram Panchayat Guda, Tahsil Palera, District Tikamgarh, M.P. (ii) Any other relief which this Hon'ble Court finds fit and proper may also be given to the petitioner. 2. By putting deep dent on the impugned order Annexure P-8 dated 16.10.2006 passed by Additional Collector, Tikamgarh in a revision, it has been contended by learned counsel for the petitioner that against no-confidence motion respondent No. 3-Bhoori Devi preferred an appeal which was registered as revision by the Additional Collector and allowed the same by setting aside the no-confidence motion. The contention of learned counsel for the petitioner is that the said order of Additional Collector Annexure P-8 dated 16.10.2006 is coram-non-judice as there is no provision to file either appeal or revision under M.P. Panchayats (Appeal and Revision) Rules, 1995 (hereinafter referred to as 'the Rules of 1995') against the motion of no-confidence and, therefore, the impugned order Annexure P-8 be set aside being without jurisdiction. 3. On the other hand, Shri Sudesh Verma, learned Government Advocate has submitted that on bare perusal of the order Annexure P-7 passed by this Court in WP No. 12576/ 2006 it is gathered that the proceedings before the Additional Collector on the basis of which impugned order Annexure P-8 has been passed, was treated by the petitioner as dispute under section 21 (4) of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam') and if that is the position, according to learned Government Advocate, the impugned order would be deemed to be an order passed under the said provisions and hence it cannot be said to be without jurisdiction. 4. Having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed. 5. True, against no-confidence motion which has been duly passed, no appeal or revision would lie under the Rules of 1995 but it is equally true that under section 21 (4) of the said Adhiniyam a dispute would lie to the Collector. 5. True, against no-confidence motion which has been duly passed, no appeal or revision would lie under the Rules of 1995 but it is equally true that under section 21 (4) of the said Adhiniyam a dispute would lie to the Collector. This Court in the case of Kaushal Prasad Kashyap v. State of M.P. and others [1999 (1) Vidhi Bhasvar 25 = 1999 (1) MPLJ 455 ] has categorically held that the State Government has delegated its power to the Collector vide notification issued under sections 93. By virtue of the provision of sections 15, 16 and 17 of the M.P. Land Revenue Code, 1959 the term 'Collector' includes' Additional Collector' also. 6. On bare perusal of Annexure P-7 which is an order passed by this Court in W.P. No.12576/2006 filed by petitioner-Phoola Bai, it is gathered that against the interim order passed by the Additional Collector a revision was filed by respondent No.3 before the Additional Commissioner and Additional Commissioner gave certain directions to the Additional Collector and that order of Additional Commissioner was impugned in WP No. 12576/2006. In that petition, on bare perusal of the order on the second page of the certified copy it is found that this Court treated the proceedings which were pending before the Additional Collector to be the proceeding under section 21 (4) of the Adhiniyam. I would like to quote that portion which reads thus: "This order has been assailed by the petitioner on the ground that under subsection (4) of section 21 of the Act, the dispute may be preferred before the Collector and his order is final. Against it no revision is entertainable and the Additional Commissioner committed an error of jurisdiction in entertaining the revision and passing the impugned order." Thereafter, after quoting sub-section (4) of section 21 and other provisions, this Court held that the Additional Commissioner committed an error of jurisdiction in passing of the aforesaid order since no revision lies before it and consequently on that ground the order passed by Additional Commissioner was set aside. Thus, I am of the view that for all practical purposes, the petitioner accepted the proceedings pending before the Additional Collector to be under section 21 (4) of the said Adhiniyam. The petitioner cannot be allowed to blow hot and cold in the same breath. Thus, I am of the view that for all practical purposes, the petitioner accepted the proceedings pending before the Additional Collector to be under section 21 (4) of the said Adhiniyam. The petitioner cannot be allowed to blow hot and cold in the same breath. If at one point of time the petitioner has accepted the proceedings before the Additional Collector to be under section 21 (4) of the Adhiniyam, by somersaulting his stand now he cannot be allowed to say that the proceeding before the Additional Collector was not under section 21 (4) of the Adhiniyam and indeed an appeal/revision which was filed by respondent No.3 before the Additional Collector was not maintainable and the Additional Collector was not having any jurisdiction to pass the impugned order Annexure-P-8 quashing the no-confidence motion passed against respondent No.3. The view of this Court is that looking to the facts and circumstances of the case, the powers which were exercised in the impugned order by Additional Collector, were under section 21 (4) of the Adhiniyam. 7. No other point has been pressed before me by learned counsel for the petitioner. 8. However, I have examined the case on merit also. Under section 21 (1) of the Adhiniyam it is imperative that motion of no-confidence of Gram Panchayat should be passed by resolution having majority of not less than three- fourth of the Panchas present and voting and such majority should be more than two-third of the total number of Panch as constituting the Gram Panchayat. Under subsection (2) of this section a Sarpanch against whom motion of no-confidence is moved shall have a right to speak at or otherwise to take part in the proceeding of the meeting. On bare perusal of the impugned order it is gathered that provisions as contemplated under subsections (1) and (2) have not been complied with. In the impugned order a categorical finding of fact has been given that in all there are 21 Panchas in the said Gram Panchayat and two-third of the strength would be 14. However, only 12 Panchas put their appearance in the motion of no-confidence and hence there is clear violation of sub-section (1) of section 21. In the impugned order a categorical finding of fact has been given that in all there are 21 Panchas in the said Gram Panchayat and two-third of the strength would be 14. However, only 12 Panchas put their appearance in the motion of no-confidence and hence there is clear violation of sub-section (1) of section 21. It is also revealed from the impugned order that respondent No.3 against whom no-confidence motion was moved, was not allowed to take part in the meeting and there is no order as such indicating that she was allowed and was given opportunity to speak against no-confidence motion which is her right and which is also imperative under sub-section (2) of section 21 of the Adhiniyam. This finding is also a pure finding of fact based on appreciation of the material placed on record. In the case of Nagsai v. State of M.P. and others [1998 (1) Vidhi Bhasvar 163] this Court by placing reliance on the Full Bench decision of this Court Prabhulal v. Gram Panchayat, Guradiya [ 1986 JLJ 730 ] considered the scope of section 21 (2) of the Adhiniyam and held that the Sarpanch and Up-Sarpanch against whom the motion of no-confidence is discussed has a right to speak at or otherwise to take part of the proceeding in the meeting. The object of this right is to satisfy and impress upon the members during the course of discussion about his confidence, which was denied to the petitioner. Ultimately, this Court came to hold that even if the motion of no-confidence is passed by the majority as required under section 21 (1) of the Adhiniyam, cannot be said to have been validly passed since it is in contravention to section 21 (2) of the Adhiniyam. 9. It is well settled in law that if a particular act is to be done in a particular manner as provided under the statute, the same is required to be done in the same manner or not otherwise. Thus, the statutory right which respondent No.3 is having under sub-section (2) of section 21 cannot be infringed and it cannot be said that no-confidence motion has been rightly passed and resolved against her. Thus, the statutory right which respondent No.3 is having under sub-section (2) of section 21 cannot be infringed and it cannot be said that no-confidence motion has been rightly passed and resolved against her. The finding arrived at in the impugned order that no opportunity was provided to respondent No. 3 to take part in the no-confidence motion nor there is any material on record in order to hold that she was allowed to oppose the no-confidence motion and since this is a pure finding of fact which cannot be assailed in the writ jurisdiction, I am of the view that dehors the provisions of section 21 (2) of the Adhiniyam the said resolution of no-confidence which has been passed, cannot be allowed to remain stand and has been rightly quashed by the impugned order. 10. The same view has also been taken in another decision of this Court in Munni Devi (Smt.) v. Sub-Divisional Officer and others [1997 (2) Vidhi Bhasvar 181], in paras 8 and 15 of the said decision it has been specifically held that the provisions of section 21 should be strictly followed and these provisions are mandatory in nature. The same principle has been again reiterated by the Division Bench of this Court in Muku Bai (Smt.) v. State of M.P. and others [1999 (1) Vidhi Bhasvar 4], where in para 12 the Division Bench has held as under: "Learned counsel has specifically invited our attention to sub-section (2) of section 21 of the Act of 1994, which says that the Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in the proceeding of the meeting. In this connection, our attention was invited to a decision of this Court given in the case of Balramdas v. Commissioner, Raipur [ 1984 MPWN 336 at page 391] and in that, the old provisions of Panchayat Adhiniyam, 1981 have been interpreted by the Division Bench of this Court that by virtue of the provision of section 18 (c) of the M.P. Panchayat Adhiniyam, 1981, confers a right on the Sarpanch to speak at or otherwise to take part in the proceeding of the meeting in which a motion of no-confidence is discussed against him, and it was observed: "This right is not an empty formality, inasmuch as, it enables the Sarpanch to give out his point of view and, if possible, to dissuade the Panchas from voting against him." There are no two opinions that the right to address the House cannot be denied to such person as it is also a valuable right. Therefore, this is mandatory that such Sarpanch or Up-Sarpanch should be given a right to speak when some motion is brought against him." In the present case since no-confidence motion has been passed in complete derogation to the provisions envisaged under section 21 (1) and (2) of the Adhiniyam, the same has been rightly quashed by the impugned order. 11. Even if for the sake of argument the impugned order is held to be without jurisdiction and is set aside it would amount to restoring an illegal resolution which is not permissible while exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India. In the case of Mohammad Swalleh and others v. III Additional District Judge, Meerut and another [ AIR 1988 SC 94 ], an appeal was preferred to the District Judge though appeal did not lie before him. An argument was raised before the High Court in writ jurisdiction that the order passed by the District Judge is patently illegal and without jurisdiction, but the same was not accepted by the High Court of Allahabad while exercising writ jurisdiction. An argument was raised before the High Court in writ jurisdiction that the order passed by the District Judge is patently illegal and without jurisdiction, but the same was not accepted by the High Court of Allahabad while exercising writ jurisdiction. The same argument was put forth before the apex Court and in para-7 the apex Court has held that if the order of appellate authority (District Judge) was illegal and improper and the same is set aside, it would amount to restoring an illegal order and since justice has been done and as the improper order of the prescribed authority has been set aside, the Supreme Court has held that no objection can be taken. It would be apposite to quote para-7 of the said decision which reads thus: "7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Art. 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore, in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art. 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken." 12. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken." 12. The Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and others [ AIR 1966 SC 828 ] in para 17 has held that if the High Court would have quashed the order impugned in that case it would amount to restoring an illegal order and, therefore, Supreme Court held that High Court, therefore, rightly refused to exercise its extraordinary discretionary power. It would be condign to place reliance that portion of para 17 of the said judgment which reads thus: "In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order, it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samiti. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case." In a later decision Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others [ (1999) 8 SCC 16 ] in para 38 again the Supreme Court reiterated the same principle and for ready reference I would like to quote that para which reads thus: "38. For what has been stated above we hold that the order of the lerned Member of Board of Revenue directing action to be taken for refund of the excess compensation was valid and proper though he had no jurisdiction to pass the order. In the event it is set aside it would amount to reviving an invalid order of payment of excess compensation to the appellant." 13. The Supreme Court in the case of Roshan Deen v. Preeti Lal [ (2002) 1 SCC 100 ], while elucidating the scope of Articles 226 and 227 of the Constitution of India in para 12 has categorically held that the very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by the violation of the law. The look-out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. 14. Justice Krishna Iyer has said that Law is a means to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; sometimes even stage hostile. If law shoots down justice, the people shoot down law. The said passage is quoted in Sitaram and another v. Ramgopal [ 1997 (2) JLJ 54 (Para 22)]. 15. It should be also remembered that law will never be strong or respected unless it has the same sentiment of the people behind it. 16. For the reasons stated hereinabove even on merit, this petition is found to be devoid of any substance and the same is hereby dismissed with no order as to costs.